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ELCPartially AllowedEnvironment & Land Case 21 of 2022· [2025] KEELC 3012 (KLR)

Gatuma v Mbai & 2 others (Environment & Land Case 21 of 2022) [2025] KEELC 3012 (KLR)

Environment and Land Court
21 March 2025
2,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Land Court ruled that a brother registered as owner of family land held it in trust for the family, so the properties and acquisition money must be shared through succession.

What this practically means

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Executive summary

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The plaintiff sued his late brother's administrators claiming that Augustino Mbai Gatuma, the elder son of the late Gatuma Kungu, had been registered as proprietor of five Dagoretti parcels to hold in trust for the family, since their father was deceased at demarcation in 1958. He alleged that from 2003 the defendant breached the trust by attempting to subdivide and transfer the parcels to himself and two step-brothers, barring burials on the family land, and seeking to deal with compensation monies from compulsory acquisition of part of Dagoretti/Uthiru/281. By amended plaint in 2023, the plaintiff sought declarations that the parcels and the acquisition monies belong to the estate of Gatuma Kungu and an injunction restraining the National Land Commission from releasing the funds. The defendants denied the trust; neither they nor the NLC called evidence. Applying the Supreme Court's customary trust tests in Isaac M'Inanga Kiebia, and noting that the plaintiff's unchallenged evidence stood uncontroverted given the defence's failure to call witnesses, the court found the customary trust proved and held that the late Augustino Mbai held the titles in trust for the family, defeating any claim of indefeasibility. The court declared the five parcels and the acquisition monies to be property of the estate of Gatuma Kungu but left actual distribution to the Succession Court under the Law of Succession Act, restrained NLC from releasing the compensation monies except on the court's orders, and ordered each party to bear his own costs in view of family reconciliation. The plaintiff's suit substantially succeeded.

Key legal issues

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01

Effect of failure by the defence to call witnesses

Holding

The plaintiff's evidence stands uncontroverted and unchallenged

Reasoning

Relying on Edward Mariga v Nathaniel David Shutler and CMC Aviation v Crusair, the court held that pleadings are not evidence and averments depend on evidence for proof. Since the defendant called no witness, the plaintiff's testimony remained unchallenged and was accepted as proved on a balance of probabilities.

p. 4
02

Whether a customary trust was established over the suit properties

Holding

Yes; the elder son was registered as trustee for the family of Gatuma Kungu, and the registered title was subject to that customary trust, defeating a claim of indefeasibility

Reasoning

Applying the Supreme Court's tests in Isaac M'Inanga Kiebia v Isanya Theuri M'Lintari, the court found the land was family land before registration, the plaintiff belongs to that family, and the claim is against a registered proprietor who is a family member. The family lived on and buried their dead on Dagoretti/Uthiru/281, and an earlier interlocutory observation by J.B Ojwang' J had proved true.

p. 5
03

Entitlement to relief including the compulsory acquisition compensation

Holding

The suit properties and the acquisition compensation belong to the estate of Gatuma Kungu; distribution lies with the Succession Court and NLC is barred from releasing the money

Reasoning

Having found the customary trust proved, the court declared the five parcels and the compensation monies estate property. Rather than distributing the trust assets itself, the court remitted distribution to the succession court and restrained NLC from releasing the funds except on the court's orders.

p. 5

Legal principles established

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  • Failure by a defendant to call evidence leaves the plaintiff's evidence uncontroverted and unchallenged, though pleadings are not evidence
  • A customary trust, once proved, is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the Registered Land Act, and its categories are not closed

Court orders

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  1. 1.An order declaring the properties Dagoretti/Ruthimitu/12, Dagoretti/Uthiru/281, Dagoretti/Mutuini/T.209, Dagoretti/Ruthimitu/T.183 and Dagoretti/Uthiru/T39 as belonging to the estate of the late Gatuma Kungu to be distributed under the Law of Succession Act
  2. 2.An order declaring the money generated from the compulsory acquisition of part of Dagoretti/Uthiru/281 part of the estate of Gatuma Kungu and therefore for distribution among the beneficiaries of his estate to be distributed under the Law of Succession Act
  3. 3.An order restraining the National Land Commission from releasing the money generated from the compulsory acquisition of part of Dagoretti/Uthiru/281 to the Defendants or any other person save with the express orders of the court
  4. 4.Each Party shall bear his own costs

Authorities

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Legislation

  • Registered Land ActSection 28 (proviso)
  • Law of Succession ActNot specified

Cases cited (4)

  • Edward Mariga suing through Stanley Mobisa Mariga –vs- Nathaniel David Shutler and ano
    (1979) eKLR
  • CMC Aviation Limited –vs- Crusair Limited (No. 1)
    (1987) KLR 103
  • Peter Ndungu Njenga –vs- Sophia Waitiri Ndungu
  • Isaac M' Inanga Kiebia –vs- Isanya Theuri M'Lintari & ano
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (trust and title claims), suit originally filed in the High Court at Nairobi on 1st February 2005

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gatuma v Mbai & 2 others (Environment & Land Case 21 of 2022) [2025] KEELC 3012 (KLR)", Case Analysis (2025). Environment & Land Case 21 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3012/eng@2025-03-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.